5.  The applicant was born in 1956 and is currently serving a life sentence in Kocaeli prison.
6.  The facts of the case are disputed between the parties. The facts as presented by the applicant are set out in section B below (see paragraphs 7‑13). The Government’s submissions concerning the facts are summarised in section C below (see paragraphs 14-17). Documentary evidence submitted by the parties is summarised in section D below (see paragraphs 18‑48).
7.  On 24 October 1997 the applicant, his wife, their 11-year old son, the applicant’s brother and the latter’s partner and a female friend were arrested on suspicion of membership of an illegal organisation, namely Türkiye Komünist Emek Partisi/Leninist (the Communist Labour Party of Turkey/Leninist, (“the TKEP-L”)). They were taken into custody at the anti-terrorist branch of the Istanbul police headquarters. The applicant was allegedly subjected to ill-treatment amounting to torture while in police custody and was coerced into signing statements.
8.  On 27 October 1997 the applicant was taken to a doctor. The doctor observed that both of the applicant’s wrists were swollen, that the functioning of his right wrist was restricted and that the left wrist was sensitive.
9.  On 31 October 1997 the applicant and the other detainees were brought before the public prosecutor at the Istanbul State Security Court. The applicant denied the veracity of the statements that had been taken from him by the police. He further alleged that he had been subjected to torture, and gave a detailed account of the treatment he had suffered. He also requested the public prosecutor to initiate an investigation against the police officers who had ill-treated him.
10.  On the same day, the applicant was examined by a forensic expert who observed that the applicant’s wrists and fingers were unable to perform certain movements.
11.  The prosecutor’s office at the Istanbul State Security Court asked for an investigation to be carried out into the applicant’s allegations of ill‑treatment. On an unspecified date, the Fatih public prosecutor instigated an investigation against the police officers working at the anti-terrorist branch of the Istanbul police headquarters. This investigation was concluded by a decision taken by the prosecutor on 3 February 1998 not to prosecute the police officers for want of sufficient evidence. The objection lodged by the applicant against that decision was rejected by the Beyoğlu Assize Court on 17 May 2000.
12.  On an unspecified date the applicant was transferred to Kandıra prison. During that transfer he was allegedly subjected to ill-treatment by military officers.
13.  On 16 February 2001 the applicant’s lawyer visited him in Kandıra prison. The prison authorities prevented the lawyer from giving the applicant a number of documents concerning the applicant’s appeal because the lawyer had refused to submit those documents to the authorities for inspection first.
14.  The applicant was arrested by police officers on 24 October 1997 in the course of an investigation into the activities of the TKEP/L. He was placed in police custody at the anti-terrorist branch of the Diyarbakır (sic) police headquarters. It was established that the applicant was the Secretary General of the TKEP/L.
15.  On 25 October 1997 the prosecutor at the Istanbul State Security Court authorised the applicant’s detention in custody until 28 October 1997. On 28 October 1997, a judge at the Istanbul Security Court extended the applicant’s detention until 31 October 1997.
16.  The applicant was examined by a doctor on 27 October 1997 at the Haseki hospital. On 31 October 1997 he was examined once more at the Forensic Medicine Institute.
17.  On 29 October 1997 a statement was taken from the applicant by the police. On 19 April 2000 the applicant was sentenced to life imprisonment by the Istanbul State Security Court. His conviction was upheld by the Court of Cassation on 19 May 2001.
18.  The following information appears from the documents submitted by the parties.
19.  According to an arrest report drawn up on 24 October 1997, police officers at the anti-terrorist branch of the Istanbul police headquarters established, on the basis of intelligence reports, the address in Istanbul’s Moda district where the applicant – who was wanted by the authorities – had been living. When a number of police officers went to the address, they saw a man leaving the building in which the applicant’s apartment was situated. The police officers approached the man and asked to see his identification card. Upon this, the man started to run away but was caught by six police officers after “a chase and a scuffle”. When the man refused to get into the police car, the police officers “used force to make him get into the vehicle”. An identification card, in the name of Sedat Kılıç, was found on the man.
20.  The police officers took the man to the police headquarters where he was questioned. It was established that the arrested man was in fact the applicant and the identity card in the name of Sedat Kılıç had been forged. Two keys were found in his pockets. The applicant claimed that the keys were for the door of an apartment which he shared with a certain N.P., a female. The police then took the applicant to that apartment where they found, inter alia, a pistol and bullets, a canister of CS gas, a number of left-wing magazines, books and 400 US dollars.
21.  According to a forensic medical report drawn up by a doctor at the emergency department of the Haseki hospital in Istanbul on 27 October 1997, the doctor observed the following:
“A swelling on the right wrist and restraint of the functioning of the right wrist, as well as a slight swelling and sensitivity of the left wrist ...”
22.  On 29 October 1997 a twelve-page statement was taken from the applicant – who was still in police detention – by two police officers. No lawyer was present during the questioning. In this statement the applicant said, inter alia, that he was the secretary general of TKEP/L.
23.  On 30 October 1997 statements were taken from the applicant, the applicant’s brother, the latter’s partner, and a certain M.A.A., also without a lawyer being present. These statements were taken in the course of a confrontation during which all of the above-mentioned persons were present in the same room in the police station. The applicant stated that “he was the leader of the illegal armed organisation TKEP/L” and that “M.A.A., his brother and his brother’s partner were also members of that organisation”. The applicant’s brother and M.A.A. stated that the applicant was the leader of TKEP/L. The same day the applicant was shown a number of photographs of persons who, the applicant stated, were also members of TKEP/L.
24.  At the end of his police custody on 31 October 1997 the applicant was transferred to the prosecutor’s office at the Istanbul State Security Court. A report, prepared by the police and setting out the information obtained in the course of the police investigation, was also forwarded to the prosecutor. It appears from this report that the applicant’s wife and a female with the name of N.P. had also been taken into custody on 24 October 1997. Six other persons, including the applicant’s brother, had been detained on 26 October 1997.
25.  A statement was taken from the applicant by the prosecutor at the State Security Court the same day. The applicant, who was not represented by a lawyer, stated, inter alia, that he had not made the statements in police custody of his own free will. He had been subjected to ill-treatment which included being suspended by his arms. The police officers had also squeezed his testicles and sworn at him. The applicant further submitted that it was true that he had been a member of TKEP/L, but he had never been the leader of TKEP/L. Although he had taken part in a number of activities within TKEP/L, none of those activities had involved violence or arms. The items found in the course of the investigation, including the pistol, were his – the other suspects had nothing to do with them. The applicant also asked the prosecutor to prosecute the police officers responsible for the ill‑treatment.
26.  Another statement was taken from the applicant on the same day by the duty judge at the State Security Court in the course of which the applicant was not represented by a lawyer. The applicant stated that the contents of his statements made before the prosecutor earlier that day had been correct. He denied the accuracy of the contents of the twelve-page statement taken from him on 29 October 1997 in police custody in so far as they contradicted his statement given before the prosecutor. He confirmed that he had seen his brother, his brother’s partner and M.A.A. in police custody, but stated that he had told the police officers that he did not know any of the persons whose photographs were being shown to him.
27.  The applicant’s brother and the remaining detainees, who were also questioned by the duty judge the same day, all denied being members of any illegal organisation.
28.  The duty judge ordered the applicant’s detention in prison, pending the introduction of criminal proceedings.
29.  Also on 31 October 1997 the applicant and eight other persons were examined at the Forensic Medicine Institute in Istanbul and a medical report was prepared. According to the report, the applicant complained of “a loss of flexibility in his right wrist, a loss of function of the fingers of his right hand and pins and needles and numbness on the outside of his left hand”. The report also states that “... it appears from the report prepared by the Haseki hospital that the [applicant] had been unable to perform certain hand and wrist movements”. There was no “orthopaedic pathology”. According to this report, two of the applicant’s co-accused, including M.A.A., complained of pain in their testicles.
30.  On an unspecified date the prosecutor’s office sent a letter to the prosecutor’s office in the Fatih district of Istanbul and asked for “the necessary action to be taken” in relation to the applicant’s complaints of ill-treatment. Copies of the two medical reports referred to above (see paragraphs 21 and 29 above), together with the statement taken from the applicant in which he complained of ill-treatment (see paragraph 25 above), were also appended to the prosecutor’s letter. This letter was received by the Fatih prosecutor on 12 December 1997.
31.  On 16 December 1997 the Fatih prosecutor asked the anti-terrorist branch of the Istanbul police headquarters to identify the police officers who had questioned the applicant in police custody.
32.  On 13 January 1998 the Fatih prosecutor questioned police officers H.Y. and K.Ç. Officer H.Y. accepted that he had participated in the questioning of the applicant, but denied ill-treating him.
33.  Officer K.Ç. stated that he had been present when the applicant was arrested. According to him, the applicant had resisted arrest and a number of police officers had to tackle him to the ground before they were able to control him. Upon being handcuffed and put into the police car, the applicant had attempted to take the handcuffs off and to set himself free. The applicant had not been ill-treated in custody. He had made a number of statements of his own free will and had not denied his involvement in the organisation. Officer K.Ç. further stated that there were no orthopaedic findings in the medical reports.
34.  On 3 February 1998 the Fatih prosecutor decided not to prosecute anyone in relation to the applicant’s allegations of ill-treatment. In the opinion of the Fatih prosecutor, other than the applicant’s own “abstract allegations”, there was no proof to justify the instigation of a prosecution. On an unspecified date the applicant lodged an objection against the prosecutor’s decision not to prosecute.
35.  On 17 May 2000 the Beyoğlu Assize Court dismissed the applicant’s objection. The decision of the Assize Court reads as follows: “Having regard to the contents of the report pertaining to the complainant’s medical examination, the defence arguments of the suspects, and the prosecutor’s reasoning in his decision not to prosecute, [it is hereby decided] to dismiss the objection.”
36.  In the meantime, on 3 December 1997, the prosecutor at the Istanbul State Security Court filed a bill of indictment and charged the applicant with the offence defined in Article 146 § 1 of the Criminal Code, which was in force at the time and which carried the death penalty. The prosecutor alleged that the applicant was the Secretary General of TKEP/L whose object was to undermine the constitutional order, an offence within the meaning of Article 146 of the Criminal Code. The prosecutor further stated that, although the applicant had accepted in the statements made in police custody that he had been the leader of TKEP/L, he had denied it when he was brought before the prosecutor but had accepted that he was a member of TKEP/L. Nevertheless, in the opinion of the prosecutor, the statement taken from M.A.A. in police custody proved that the applicant had been the Secretary General of TKEP/L. The prosecutor observed in his indictment that when brought before the prosecutor and the judge, M.A.A. had denied the accuracy of that statement.
37.  Throughout the hearings before the Istanbul State Security Court (hereinafter “the trial court”), the applicant denied the veracity of the allegation that he had been the leader of TKEP/L; although he had been a member of the organisation, he had not had decision-making authority. The applicant also maintained that he had been subjected to torture in police custody. Given that the accuracy of those statements had repeatedly been denied by him, it was unacceptable to use them against him as they had no probative value.
38.  The applicant’s brother informed the trial court that the contents of the statement he had made in police custody in the course of the confrontation (see paragraph 23 above) were not true.
39.  In the course of one of the hearings M.A.A. informed the trial court that the contents of the statements he had made in the course of his police custody were not true and he did not know any of the defendants present in the court room. According to verbatim records of this hearing the applicant was present in the courtroom when M.A.A. made that statement.
40.  Also in the course of the trial, the applicant confirmed that he had resisted arrest and that there had been a scuffle with the police officers who had threatened him with their weapons. Although he had done all that he could to resist the attempts of the police officers, he had been overpowered.
41.  On 12 May 1999 the prosecutor submitted his final observations on the merits of the case against the applicant to the trial court. The prosecutor stated that a certain T.T., who was being tried in another case on the grounds that he was the leader of the TKEP, had submitted that the applicant had been a member of TKEP but had left and founded the TKEP/L. In the opinion of the prosecutor, the statement made by T.T. corroborated the statement made by the applicant in police custody.
42.  On 16 July 1999 the applicant’s lawyer requested the trial court to broaden the scope of the investigation. He submitted that the statements made by the applicant and his co-defendants in police custody did not have evidential value in Turkish law. In any event, most of those co-defendants had later retracted their statements. He asked the trial court to summon all those persons who had given evidence against his client so that they could be heard and questioned.
43.  On the same day the trial court declined the applicant’s request to widen the scope of the investigation because “it had already examined those requests and the relevant documents had already been put in the file. The other requests made by the [applicant] would not shed new light on the case”.
44.  In another set of written defence petitions submitted to the trial court on 24 January 2000 the applicant’s lawyer argued that that while, on the basis of the evidence in the file, the applicant might conceivably be charged with membership of an armed organisation, that is the offence defined in Article 168 § 2 of the Criminal Code, there was no material or legal basis for accusing his client of the offence defined in Article 146 § 1 of the Criminal Code. The statements made in the course of another trial in which his client was implicated could not be relied on in evidence. The lawyer repeated his requests of 16 July 1999 and asked the trial court to reconsider its decision not to summon those witnesses.
45.  On 19 April 2000 the trial court convicted the applicant as charged. In convicting the applicant, the trial court relied on the statements made by the applicant and his co-defendants in police custody. According to the trial court, the statements made by the applicant in police custody had been “precise and accurate”. The statements made by the applicant before the prosecutor and the duty judge after his release from police station, that is the statements in which the applicant accepted being a member of TKEP/L but denied being its leader, on the other hand, were regarded by the trial court as “insincere”. In the opinion of the trial court, when the statements made by the applicant and his co-defendants in police custody were examined together with the statements made by persons accused of membership of the same organisation, it became evident that the applicant had been the leader of TKEP/L. On that premise, the trial court considered it appropriate to hold the applicant responsible for all the activities carried out by TKEP/L. Noting that TKEP/L was an organisation involved in activities aimed at replacing the prevailing system, through violence, with that of a proletarian dictatorship based on Marxist-Leninist principles, the trial court decided that the applicant was guilty of the offence defined in Article 146 § 1 of the Criminal Code and sentenced him to death. This sentence was commuted to life imprisonment.
46.  The trial court acquitted six of the seven co-defendants on grounds of lack of evidence. It observed that, although these co-defendants had made statements in police custody in which they accepted being members of TKEP/L, they had later denied the accuracy of those statements.
47.  On 21 February 2001 the applicant appealed against the judgment of the trial court and argued that the principle of equality of arms had been breached on account of the trial court’s refusal to widen the scope of the investigation.
48.  On 19 March 2001, after a hearing, the Court of Cassation upheld the trial court’s judgment in so far as it concerned the applicant and quashed the acquittals of the six co-defendants on the ground of the trial court’s failure to collect further evidence against them by failing to summon a number of defendants who were being tried in other cases.